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This article studies the effects of invoking international necessity, to see whether it can be reconciled with an aspiring international rule of law. Any field of application in theory possible, the doctrine is here applied to uses of force, illustrated by humanitarian interventions, actions against international terrorism and the 2004 Construction of a Wall case. Relationships between circumstances precluding wrongfulness and the grounds for treaty termination is examined in light of international practice, studying necessity's impact on the stability of treaty regimes. The author concludes that international tribunals when applying necessity generally heed the rule of law, the stability of treaties and the elevation of overriding norms.
Necessity, if successfully invoked, is not perceived to alter substantive obligations. It cannot create a right to assume would-be illegal behaviour. As a result, necessity need not threaten international legal regime building, but may serve as a safety valve, allowing states to remain faithful to general norms, from which they are allowed to deviate only temporarily. In this manner, necessity can even contribute to the rule of law, thanks to its limited scope, constitutionalising emergency powers and subordinating them to pacta sunt servanda.
The liberal political thought has shaped views on normativity in international law by insisting on rule neutrality and determinacy through the sources doctrine and the idea of a clear-cut normative threshold. The present debate over the normative quality of diplomatic assurances poses an extraordinary challenge to these ideals. Moreover, any attempt to qualify the assurances as soft law further illustrates the manipulation of normativity-talk through the narratives of normative expansion and communitarisation. Ultimately, the liberal project cannot fulfill its promises, leaving international lawyers disenchanted.
United Nations human rights treaties dealing with specific concerns contain provisions in terms of obligations for states, rather than individual rights. This has consequences for the assessment by treaty monitoring bodies of the level of compliance by States Parties. While human rights norms generally impose obligations on states, the opposite is not always the case; not all obligations in human rights treaties contain corresponding rights for individuals. While the ILC Articles on State responsibility address the establishment of state responsibility in contentious procedures established by the regional human rights conventions; they do not take into account other monitoring procedures that exist, in particular under United Nations human rights treaties. These instruments create different mandates for treaty monitoring bodies, under which they can and do examine treaty implementation in much more general terms than would be possible under the contentious procedure. The individual complaint procedure under some of the treaties, the inquiry procedure and the reporting procedure offer possibilities to assess whether states' non-compliance with treaty obligations. This article examines these possibilities in the light of the ILC Articles on state responsibility.
INFORMATION* CONCERNING THE HAGUE CONVENTIONS ON PRIVATE INTERNATIONAL LAW: Situation as of 31 May 2009
Published online by Cambridge University Press: 20 August 2009, pp. 207-243
The Brussels I Regulation No 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (hereinafter referred to as the Brussels I Regulation) establishes a judicial area in Europe with uniform rules on jurisdiction and recognition and enforcement of judgments. The Brussels I Regulation is now in force in all EU Member States, including Denmark. On 1 July 2007 a separate Agreement between the European Union and Denmark came into force, in which the Brussels I Regulation is declared applicable in the relationship between Denmark and the other Member States. Bulgaria and Rumania joined the European Union on 1 January 2007 and became bound by the Brussels I Regulation as part of the acquis communautaire.